GULAB BAI Vs. ABIRCHAND

JUDGEMENT

(1.) This is the revision, preferred by the legal representatives of the deceased- defendant Gendalal against the trial Court's Order dated 16-1-1979 allowing plaintiffs' application under Order 22, Rule 9, CPC for bringing the LRs. of the deceased defendant on record.

(2.) Facts not in dispute are briefly these : The sole defendant Gendalal, during the pendency of eviction suit against him, had died on 3-5-1976. On 29-7-1976, which was the date of the hearing in the suit, defendant Gendalal's counsel pleaded no instructions nor did he apprise the Court or anyone that Gendalal had already died. 30-9-1976 was the next date for the ex parte evidence in the case and the plaintiff No. 1 Abirchand had attended the trial court for ex parte evidence. It was on 20-10-1976 that the plaintiffs filed an application in the Court for bringing the LRs. of the deceased defendant Gendalal on record. Condonation of delay was equally prayed for. Proposed LRs were noticed and they filed their objections to the plaintiffs' application under Order 22, Rule 9, CPC.

(3.) According to the plaintiffs, they learnt about the death of Gendalal for the first time on 30-9-1976 when Abirchand was returning from the hearing of the Court after giving his evidence. It was then that he, after making inquiries regarding the LRs of the deceased defendant, had filed an application on 20-101976 for bringing the LRs on record. According to the plaintiffs they had sufficient cause for not making the application within the prescribed time for substitution of the LRs of the defendant on record since they were ignorant of the defendant's death. The proposed LRs of the deceased defendant vehemently opposed the application contending that the plaintiffs had full knowledge regarding the death of the defendant Gendalal, inasmuch as one of the plaintiffs viz., Abirchand had actually attended the funeral and also, inasmuch as, the plaintiffs were regular visitors of Bajrangarh, where they had in their occupation the first floor of the building in which the suit premises situated on the ground floor were located. It was, hence, urged that the plaintiffs were not entitled to any condonation of delay. The trial Court, after evaluating the evidence on both sides came to hold the view that the witnesses, examined on the side of the deceased defendant's LRs were highly interested and unreliable. Relying on the evidence of the plaintiffs' side, it was held that the plaintiffs were ignorant of the death of Gendalal till 30-9-1976, on which date alone they learnt about the death of Gendalal for the first time. According to the trial Court, there was sufficient cause for the plaintiffs in not applying for substitution of the LRs of the deceased defendant Gendalal; and as such, plaintiffs' application for substitution of the LRs of the deceased defendant was allowed. Hence now, the present revision.